Allowed

T.v.Jayan v. State of Kerala and Others

Kerala HC17 Aug 2016WP(C)/22763/2010

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the petition challenging the Chalakudy Municipality's order cancelling occupancy certificates and building licenses. The court set aside notices and orders issued without hearing the petitioner or applying proper mind to the circumstances before cancellation.

What did the court decide?

The notices and orders, specifically Exts. P2, P3, P4, P5 and P8, are set aside as they were issued without notice and application of mind.

T.v.Jayan Vs State of Kerala and Others — Municipal and Town Planning | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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WEDNESDAY, THE 17TH DAY OF AUGUST 2016/26TH SRAVANA, 1938

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WP(C).No. 22763 of 2010 (U)

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PETITIONER(S):

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T.V.JAYAN, THOTTEPARAMBIL HOUSE, KODASSERY (PO), NAYARANGADY, THRISSUR DISTRICT.

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BY ADVS.SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN

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RESPONDENT(S):

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1. STATE OF KERALA,REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.

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2. THE CHALAKUDY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, CHALAKUDY, PIN-680 307.

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3. THE CHALAKUDY MUNICIPAL OFFICE, CHALAKUDY - 680 307.

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4. THE DISTRICT TOWN PLANNER, PATTURAKKAL, THIRUVAMPADY(PO), THRISSUR - 680 072.

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R1 & R4 BY SENIOR GOVERNMENT PLEADER SRI.SANTHOSH PETER R2 & R3 BY ADVS. SRI.M.P.ASHOK KUMAR

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SMT.BINDU SREEDHAR SMT.R.S.MANJULA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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WP(C).No. 22763 of 2010 (U)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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------------------------

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EXT.P1:	COPY OF THE BUILDING PERMIT ISSUED TO THE PETITIONER BY THE CHALAKUDY MUNICIPALITY.
EXT.P2:	COPIES OF COMPLAINTS SUBMITTED AGAINST THE PETITIONER'S BUILDING BEFORE THE HON'BLE CHIEF MINISTER.
EXT.P3:	COPY OF THE REPORT DTD.16.3.2010 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT.
EXT.P4:	COPY OF THE ORDER DTD.23.4.2010 ISSUED BY THE 1ST RESPONDENT.
EXT.P5:	COPY OF THE ORDER DTD.18.6.2010 ISSUED BY THE 1ST RESPONDENT.
EXT.P6:	COPY OF THE NOTICE DTD.11.5.2010 ISSUED BY THE 2ND RESPONDENT.
EXT.P7:	COPY OF THE REPLY DTD.21.5.2010 ISSUED BY THE PETITIONER BEFORE 2ND RESPONDENT.
EXT.P8:	COPY OF THE ORDER DTD.15.7.2010 ISSUED BY THE 2ND RESPONDENT.

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RESPONDENT(S)' EXHIBITS:

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------------------------

NIL

//TRUE COPY//

P.S.TO JUDGE

Msv/

P.V.ASHA J.

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W.P.(C) No.22763 of 2010

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--------------------------------------------- Dated this the 17^th day of August, 2016

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J U D G M E N T

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Petitioner challenges the notice Ext.P8 order issued by the Chalakudy Municipality canceling the occupancy certificates, building number and licences issued in favour of the petitioner in respect of his building in ward No.28 in Chalakudy Village in survey No.444/39 for which the permit was issued as B.A. 594/05-06 and occupancy certificates were issued on 26.05.2007 and 23.6.2007. It is stated in Ext.P8 that the parking facilities were not made available for the second floor of the building as provided in Kerala Municipal Building Rules, 1999 ('KMBR99' for short). It is seen that Ext.P8 was issued on the basis of Ext.P2 series of complaints submitted before the Chief Minister by one Mohanan Nair, Arakkal House, Chalakudy, another complaint by one Sri.Babu Josph, Puthanangadi and another complaint by one Sri.Roy Mathew alleging that the building is constructed in violation of rules. The complaints were mainly with respect

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W.P.(C) No.22763 of 2010

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to a hotel functioning in the parking area of the building. Thereafter on the basis of the directions from Government in its letter dated 09.02.2009 the District Town Planner submitted Ext.P3, reporting certain violations found with respect to the coverage, parking and sanitation facilities and functioning of a coffee house in the building in violation of the rules. Pursuant to this report, Government issued Ext.P4 letter dated 23.04.2010 directing the Municipality to submit explanation against grant of permit in favour of the petitioner for constructing the building in violation of Rules 31, 34, 56(7) of the KMBR-99. It was also directed to cancel the occupancy certificates, building numbers and licences issued to the petitioner. This is followed by Ext.P5 letter dated 18.06.2010 of the Secretary, Local Self Government Department, again seeking follow up action pursuant to Ext.P4 letter. Municipality issued Ext.P6 notice, pursuant to the direction of the Government in Exts.P4 and P5 and informed the petitioner that he should take action for regularising the construction of the building, within a

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W.P.(C) No.22763 of 2010

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period of 15 days failing which licence would be cancelled. The petitioner thereupon submitted Ext.P7 reply on 21.05.2010 informing that the construction was made on the basis of the plan and permit issued on 31.05.2006 and petitioner has been paying the tax and after submitting the completion certificate, the occupancy certificate was issued. It was further stated that as far as second floor is concerned he was given permit for construction of 159.37 square meters but he was unable to carry out the construction. According to him, there was no violation. However, as per Ext.P8 the Secretary of Municipality cancelled the licence pursuant to the orders issued by the Government.

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This Court had stayed the further proceedings on the basis of Ext.P8, as per order dated 22.07.2010.

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Third respondent-Town Planner filed a statement, in which it was stated that he had conducted an inspection and had submitted Ext.P3 report on 16.03.2010 in which violation of Rules 31, 34 and 56(7) of the KMBR-99 were found and report was forwarded to the

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W.P.(C) No.22763 of 2010

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Government. According to the 3^rd respondent all the violations were pointed out in the report and the petitioner was not entitled to the occupancy certificates. It was further stated that in the approved plan of the building the building area and the plot area were not mentioned.

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The Municipality filed a counter affidavit stating that the Municipality had issued a revised permit on 25.01.2007 for construction of building having ground floor and first floor. However, it is admitted that notice was issued by the Municipality on the basis of the directions issued by the Government and the petitioner was asked to rectify the violation. In the counter affidavit, the Municipality stated that it had accorded sanction for construction of the second floor and issued building permit on 15.09.2007. At that time the petitioner had sought permission to start a coffee shop in the ground floor. But on the basis of the report of building inspector that parking facilities were inadequate, petitioner was denied permission to start coffee shop. It is further stated

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W.P.(C) No.22763 of 2010

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that the Municipality had already cancelled the permit for second floor on the request of the petitioner. In view of the cancellation of permit for construction of second floor, it was stated that the existing building had adequate parking space as per Rule 34 of the KMBR-99. It was also stated that the petitioner had taken necessary steps to provide sanitation facilities as per KMBR-99 and these violations found in Rule 56 of KMBR-99 could be corrected.

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It is clear that the Municipality did not have any case while issuing Ext.P8 that there was any violation and that it was only on the basis of the Government's direction that orders cancelling the occupancy certificates, licences, etc., were issued as per Ext.P8.

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As far as the Government order is concerned, it is seen that the said order was issued without hearing the petitioner on receipt of some complaints. It is the case of the petitioner that the complainants were not residing anywhere in Chalakudy and they are fictitious persons.

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Heard the learned counsel for the petitioner, learned Standing Counsel appearing for Municipality and

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W.P.(C) No.22763 of 2010

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learned Government Pleader.

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Subsequent to the filing of the counter affidavit, the Municipality has filed a statement on 09.08.2016 stating that there are no parking facilities for the building and the parking space is converted as shop room in violation of Rule 34 of KMBR-99. However, it is for to the Municipality to take action in case there is any violation.

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This Court had only stayed the proceedings based on Ext.P8. Now it is seen that Ext.P8 was issued merely on the basis of the direction of the Government without any application of mind to the circumstances. In the counter affidavit filed by the Municipality, they have stated that they took action only on the basis of the direction issued by Government. From the statement of the 3^rd respondent also it is clear that the inspection was conducted without any notice to the petitioner. Government also issued the order without hearing the petitioner. Therefore, the orders/notice Exts.P2, P3, P4, P5 and P8 are set aside.

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This will not prevent the Municipality from

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W.P.(C) No.22763 of 2010

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taking action in accordance with law in case there are any violation as stated in the additional counter statement filed by the second respondent on 09.08.2016. Any such action shall be only in accordance with law and after notice to the petitioner.

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Writ Petition is allowed as above.

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Sd/- P.V.ASHA, JUDGE.

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T.v.Jayan v. State of Kerala and Others

Case brief

What is this about?

What did the court decide?

T.v.Jayan v. State of Kerala and Others

Case brief

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